United States v. 2020-01-06 | 18-10059 | USA V. KENNETH PARKS | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH PARKS, ET AL.,

Defendants,

KYN NAOPE,

Appellant-Movant.

No. 18-10059

D.C. No. 12-cr-375-TLN

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding

Submitted

July 16, 2019
**

San Francisco, California

Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,
***
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
FILED

JAN 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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I. Background
Appellant, Kyn Naope, was sentenced to 60 months imprisonment and
ordered to pay restitution stemming from a scheme to fraudulently collect
unemployment benefits from the State of California Employment Development
Department. In pursuing his sentencing appeal, based on a claim of ineffective
assistance of counsel, Naope discovered several sealed filings in a related case,
United States v. Parks, 2:12-cr-375 TLN. Without seeking to intervene, Naope
requested that the district court presiding over Parks allow him access to the sealed
filings to determine whether they contained exculpatory material that could assist
him in his sentencing appeal. Alternatively, Naope requested that the district court
review the filings in camera to make the same determination. The district court
denied Naope’s request as he was not a party to the case. Naope now appeals the
district court’s denial.
II. DISCUSSION
Naope does not have standing to appeal the district court’s order. See Citibank
Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir. 1987) (citing Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534 (1986)). “[O]nly a properly named party
may initiate an appeal.” Id. “In this circuit, a nonparty to the litigation on the merits
will have standing to appeal the decision only in exceptional circumstances when:

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(1) the party participated in the proceedings below; and (2) the equities favor hearing
the appeal.” Id.; United States v. Badger, 930 F.2d 754, 756 (9th Cir. 1991).
There is no question that Naope was not a named party in Parks. Naope did
not seek to intervene in Parks and is properly considered a non-party in light of this
Court and the Supreme Court’s precedent. The non-party exception does not apply
to Naope because he did not participate in Parks beyond filing a self-interested
request to access the sealed filings without seeking to intervene and because the
equities do not weigh in favor of hearing his appeal.
1. Participation
Naope did not participate in the proceedings below such that he should be
entitled to appeal the district court’s order denying his request. Naope merely filed
a request to access sealed documents. Filing such a request is not the sort of
“participation” this Court contemplated in establishing the exception allowing a non-
party to appeal an order. In fact, this Court has only allowed a non-party’s appeal
where the party has participated in the case below in some meaningful way. See
Citibank, 809 F.2d at 1441 (citing SEC v. Wencke, 783 F.2d 829, 834–35 (9th Cir.
1986)). In Citibank, this Court held that a non-party did not participate in the
proceedings below because the non-party had only filed a post-judgment motion to
vacate. Similarly, Naope only filed a single self-interested motion to access sealed

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filings. Naope’s limited filing does not rise to the level of meaningful participation
required to have standing to appeal.
2. Equities
Furthermore, the equities do not weigh in favor of hearing Naope’s appeal.
An appeal here is not the most expeditious way for Naope to obtain potentially
exculpatory information. See Badger, 930 F.2d at 756. Naope may and should have
requested the district court in his case to compel the Government to produce any
exculpatory information, including any in the sealed filings in Parks. If the district
court denied Naope’s motion, he could have appealed that denial. Seeking an order
compelling the Government to produce exculpatory information in his own case is
the most expeditious way for Naope to achieve his goal. For this same reason,
denying this appeal is not unjust because Naope has an alternative (and more
procedurally proper) way to seek the information he desires. Additionally, the
district court certainly did not hail Naope into Parks such that it would be unfair not
to allow Naope to appeal the order.
In sum, Naope does not have standing to appeal the Parks order denying his
request to access sealed documents because Naope is a non-party to the case who
did not meaningfully participate, or seek to intervene, in the proceedings below and
because the equities do not weigh in favor of hearing his appeal.

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III. CONCLUSION
For the reasons above, this appeal is dismissed.